Many opponents of Prop 8 are evidently hopeful that the Ninth Circuit panel will rule that Prop 8’s proponents lack standing on appeal and will dismiss the appeal on that ground. They might want to be careful what they wish for.

As UC Davis law professor Vikram Amar (a former Blackmun clerk and not a conservative) and I have both discussed, a ruling that Prop 8’s proponents lack standing on appeal may also compel the conclusion that the district-court proceedings lacked the adverseness needed under Article III—and that Judge Walker’s judgment should therefore be vacated in its entirety. Now that would be a fitting conclusion.